Batchelder v. Batchelder

84 Mass. 105

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1861
• Status: Published

Opinion

Metcalf, J.

We understand that the agreement of letting and hiring in this case was not in writing. The defendant was therefore a tenant at will, with the liabilities as well as the rights of other tenants at will; and the jury were correctly instructed that though the agreement was that he might quit when he pleased, yet he was liable for the stipulated rent until he had given to the plaintiff the statute notice of an intention to quit. Gen. Sts. c. 90, § 31. Walker v. Furbush, 11 Cush. 366.

The evidence concerning the defendant’s offer made to the plaintiff, for the purpose of buying peace, was decided by the judge to be inadmissible, as soon as he had heard it; and his instruction to the jury to disregard it left to the defendant no legal ground of complaint. Brown v. Cowell, 12 Johns. 384. Selkirk v. Cobb, 13 Gray, 313.

The question as to the sufficiency of the plaintiff’s declaration cannot be raised on this bill of exceptions. That question should have been raised, if at all, by demurrer. Gen. Sts. c. 129, § 11. It cannot be raised by an oral objection, nor by a written motion to abate the writ. It was open to the defendant to object that the declaration was not supported by the evidence. But lie did not make that objection at the trial, and cannot make it now. Jones v. Fales, 4 Mass. 254. The only objections made by him were, that the declaration did not conform to the requisitions of the practice act, and did not sufficiently set forth the ground of the plaintiff’s claim. These objections were properly overruled ; being matters of demurrer only. The means used by the defendant, to defeat the action for want of a sufficient declaration, were not adapted to that end.

Exceptions overruled.